Andrew Sullivan says he is “heartbroken” over McCain’s vote against a Democratic proposal that would apply the Department of Defense Field Manual to the CIA. The Field Manual explicitly limits the kind of interrogation techniques the military can use; the CIA’s “alternate” techniques have, in the past, included waterboarding, sleep deprivation and “the cold cell.” Sullivan, relying mainly on analysis from Marty Lederman, says that McCain’s reluctance to restrict the CIA to the military’s manual is tantamount to “tolerating” torture.
Lederman goes further:
Senator McCain … wishes that the CIA be permitted to continue the use of other of its enhanced techniques, apart from waterboarding. Those techniques are reported to include stress positions, hypothermia, threats to the detainee and his family, severe sleep deprivation, and severe sensory deprivation. Senator McCain has not explained which of these he thinks are not torture and cruel treatment, nor which he would wish to preserve for use by the CIA. But if the President does as he has promised and follows Senator McCain’s lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques — and possibly waterboarding, as well.
The campaign, however, points to this statement by the Department of Justice’s Office of Legal Counsel chief, Stephen Bradbury. In it, the DOJ, for the first time and in direct contradiction of Lederman’s conjecture, declares waterboarding illegal under current law. McCain argues this statement means that the CIA does not need to be brought under the Field Manual in order to prevent them from using waterboarding — or other extreme techniques already, in his interpretation, illegal under the Detainee Treatment and Military Commissions Acts. In a statement, McCain noted, “DTA permits the CIA to use different techniques than the military employs, but… it is not intended to permit the CIA to use unduly coercive techniques – indeed, the same act prohibits the use of any cruel, inhumane, or degrading treatment.”
Basically, McCain thinks that the techniques that Sullivan and company are worried about are already out of the CIA’s “toolbox.” Are they? In his analysis of the Military Commissions Act, Lederman wrote that the legislation defined “cruel treatment” too narrowly and that the administration would likely interpret the language as permitting “Long Time Standing, Cold Cell, threats, other stress positions and sleep deprivation, and even waterboarding.” He also admitted he might be wrong, and that “Perhaps Human Rights First is correct that the bill ‘makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes.'” Bradbury’s statement shows, at the very least, that Lederman was incorrect about how the administration would read the law as applied to waterboarding. (Sullivan, rightly, I think, points out that the whole torture debate has been distorted by an emphasis on waterboarding, it “allowed people to believe that this relatively rare technique is the beginning and end of the Bush-Cheney torture regime.”)
A small common sense question, then: If there are techniques not included in the Field Manual that aren’t torture — and these are presumably the techniques that the CIA can (and wants to) use — what are they?
UPDATE: pme asks:
Does the field manual enumerate allowable methods or limit methods only in the sense that it identifies specific prohibited methods? Could we be talking about imaginary new interrogation techniques that those clever lads at the CIA might be dreaming up, even as we speak?
The Field Manual (you can download it here) specifies techniques, it doesn’t prohibit them. But, even if it prohibited specific methods, “imaginary” techniques are very much the point; I’m sure there are thinking caps being donned in Langley at this very moment.